The Supreme Court ruled unanimously on Monday that immigration judges who want to challenge a federal policy restricting what they can say in public have to file their grievances inside the federal-employee complaint system before going to court. The decision, an unsigned per curiam in Margolin v. National Association of Immigration Judges, reversed a Fourth Circuit ruling that had allowed the suit to proceed in district court.
In any ordinary year, this would be procedural housekeeping. The Court would tell the judges to use the front door instead of the side window, and the system on the other side of the front door would, at minimum, exist. That is the problem.
The Trump administration spent 2025 firing the people who staff the very system the judges are now told to use. The Office of Special Counsel lost its head. The Merit Systems Protection Board lost its quorum. The Fourth Circuit, when it allowed the suit to proceed below, said as much: it could not pretend that a channeling rule from 1978 still channeled anything if the channel had been emptied in 2025. Monday’s unanimous opinion declined to engage that argument on the merits and reversed on a different ground entirely. It told the judges to come back later, in the right forum, with the right paperwork, and try again.
The right forum may not exist. That is the editorial point, and it is the part of the ruling that should not be smoothed over.
What the policy actually does
The underlying policy, in place since 2020 and tightened since, requires immigration judges to obtain prior approval from the Executive Office for Immigration Review before giving a speech, a guest lecture, a community-group talk, or any public remark on a subject that “directly relates to” their official duties. The National Association of Immigration Judges has spent six years arguing that this is a prior restraint on protected speech and that no federal court has ever upheld anything quite like it.
The merits question goes back to the Fourth Circuit on remand. The relevant point here is that prior approval requirements on public employee speech are the precise mechanism Supreme Court doctrine since Pickering v. Board of Education has treated as the most disfavored form of government censorship — disfavored because a prior approval requirement chills the speech before it happens, and because the speaker cannot know in advance whether the chill is being applied evenhandedly.
What the Court actually held
Monday’s opinion rests on the Civil Service Reform Act of 1978, which created the Merit Systems Protection Board and the Office of Special Counsel and required federal employees with workplace grievances to use those bodies before going to federal court. The Fourth Circuit had ruled the CSRA’s channeling rule could not apply where the channels themselves had become inoperative. The Supreme Court reversed without addressing whether the channels are, in fact, inoperative.
The opinion handles this by invoking what lawyers call the party-presentation principle. The Court said the Fourth Circuit had reached for a question that NAIJ itself had not pressed in the form the appeals court resolved. The Fourth Circuit will get the case back. It can, in theory, ask the same question again in a more precisely framed form.
The clean reading of the per curiam is “lower courts should not blow up a Supreme Court precedent on their own initiative; remand for tighter framing.” That reading is defensible. The less clean reading is that the federal-employee complaint system has been functionally disabled by the same executive branch that benefits from the channeling rule, and the Supreme Court declined to look at that fact when it had the chance.
The channels are not abstract. They are people, and the people were fired.
The Civil Service Reform Act was passed in 1978 because Congress decided federal employees needed an independent buffer between themselves and the political appointees running their agencies. The buffer has two parts: the Merit Systems Protection Board, which hears appeals of adverse personnel actions, and the Office of Special Counsel, which investigates prohibited personnel practices and represents federal whistleblowers.
For most of 2025, neither institution operated as Congress designed. In February 2025, the president removed Cathy Harris from the MSPB. With Harris gone, the three-member board fell below a quorum and could not decide cases. Tens of thousands of federal employees fired in that same window — between Reduction in Force orders, probationary-employee firings, and agency shutdowns — could file appeals. The Board could not act on them. The cases sat.
In March 2025, after a tangled set of injunctions and appellate stays, the administration succeeded in removing Special Counsel Hampton Dellinger. Dellinger had been confirmed by the Senate to a five-year term and could only be removed for cause. He sued. The D.C. Circuit allowed the removal to take effect while litigation continued. Dellinger ultimately dropped his case. The office that was supposed to represent fired federal employees did not have a confirmed head to represent them.
This is what the Fourth Circuit was describing when it said it could not channel the immigration judges’ suit into a system that had been “undermined.” It was not a rhetorical flourish. It was a description of the building.
The honest version of the rule
The reasonable counterargument runs like this: the CSRA is a generally applicable statute, the Supreme Court should not let plaintiffs route around it on a record-specific theory about temporary administrative dysfunction, and channeling rules exist so that one court does not declare a generation-old statutory scheme unworkable in a single ruling. Channels can be repaired. Speech challenges can wait.
We accept the first half. Thunder Basin Coal Co. v. Reich, the foundational case, exists because Congress sometimes does mean to push particular kinds of disputes into particular kinds of bodies before federal courts get them.
We do not accept the second half. The chill on protected speech is happening now. Immigration judges who would like to accept a guest-lecture invitation at a law school this fall do not know whether their request will be approved, denied, or simply sit. The administrative wait time, even when the MSPB has a quorum, is measured in years; the Special Counsel’s investigations move on the same timescale. A “use the channel first” rule, applied to a prior restraint, hands the speech-restricting agency a working tool: the longer the channel takes, the longer the restraint operates, the more speech is chilled. That is not a side effect. That is the design. The same logic that lets a USCIS memo recharacterize a green-card statute lets a personnel-rule channel become a censorship channel: the form is procedural, the function is not.
The honest version of what Monday’s opinion says is this. The Court declined to decide whether a federal employee whose complaint system has been functionally disabled by the executive branch still has to use it before going to federal court to vindicate a constitutional right. It did so on the narrow ground that the Fourth Circuit asked the wrong question in the wrong order. That narrow ground is real. But the real-world consequence is also real: federal employees, including the immigration judges who serve as the front line of a 3.7-million-case docket, have lost their direct route to federal court, and they have not yet been told whether their indirect route exists.
What changes now
The Fourth Circuit gets the case back. It can re-pose the question carefully — with a better record on which MSPB seats are filled, which Special Counsel functions are exercised, which cases are being adjudicated — and send it up again. Or it can leave the question for the parties to press through the channeling system itself, which is the slow path the Court appears to prefer.
Either way, the underlying speech policy is in place today and will be in place for the duration of the next round of litigation. The roughly 500 immigration judges who lent their names to this case — all federal employees subject to discipline if they speak out of turn about anything that “directly relates to” their work — remain bound by the prior approval rule while their challenge sits in administrative purgatory.
Congress could fix this. The CSRA could be amended to carve out constitutional challenges from its channeling requirement, as it already does for some narrow categories. The MSPB could have its quorum restored by Senate confirmation of new members. The administration that has routinely tested the limits of executive power against statutory guardrails could choose, at any point, to let the buffers Congress created actually work. None of that requires a Supreme Court ruling. All of it requires political will that has been missing.
Until then, the rule out of Monday’s case reads roughly like this. If you are a federal employee whose constitutional rights are being violated, you must use the system Congress built to protect you. If the administration that is violating your rights has also disabled the system that was supposed to protect you, the courts will decide whether that matters at a later date, in a different posture, on a different record, in a way that does not, today, restore your ability to speak.
The Court took a step Monday that, on its own, is procedurally narrow. The step has a meaning that is not narrow at all. When you fire the people who staff a complaint system and then insist that complaints have to go through it first, you are not running a channel. You are running a stall. The Supreme Court is not obligated to notice. The country is.
Sources 7 cited · 3 primary
- Margolin v. National Association of Immigration Judges, No. 25-767 (per curiam, May 26, 2026)
- Supreme Court Declines to Hear Challenge to Federal Policy Silencing Immigration Judges, Reverses Appeals Court
- Court sides with Trump administration in dispute over immigration judges
- Trump fires one-third of federal employee appeals board
- Hampton Dellinger, fired by Trump as head of federal watchdog agency, gives up legal fight
- Court allows Trump to fire appeals board member, which could 'trap in legal limbo' feds fighting terminations and RIFs
- Civil Service Reform Act of 1978 (Public Law 95-454)
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